Turner v. Mandalay Sports Entertainment, LLC
Turner v. Mandalay Sports Entertainment, LLC
Opinion of the Court
OPINION
By the Court,
In this appeal, we address whether baseball stadium owners and operators have a duty to protect spectators against injuries caused by foul balls that are errantly projected into the stands. We conclude that stadium owners and operators have a limited duty to protect against such injuries and that respondent satisfied its duty as a matter of law under the facts presented in this case. Accordingly, we affirm the district court’s judgment in respondent’s favor.
FACTUAL AND PROCEDURAL BACKGROUND
At all times relevant to this appeal, respondent Mandalay Sports Entertainment, LLC, owned and operated the Las Vegas 51s, a minor league baseball team that plays its home games at Cashman Field in Clark County. From 2000 to 2002, appellants Kathleen and Michael Turner owned season tickets for home games played by the 51s.
Like most professional baseball teams, the 51s include a disclaimer on their tickets informing fans that the team is not responsible for injuries caused by foul balls.
On May 4, 2002, while attending a 51s game at Cashman Field, Mr. and Mrs. Turner left their assigned seats and walked to the “Beer Garden,” a concessions area located in the upper concourse level above the stands. The Beer Garden — which is several hundred feet from the playing field — contains tables and chairs where pa
While at the Beer Garden, Mr. Turner purchased a beverage for himself and a sandwich for his wife. Mr. Turner then stood at the railing so that he could continue to watch the game. Mrs. Turner, on the other hand, took her sandwich and sat at one of the available tables. According to Mrs. Turner, she was unable to see any part of the field from her table.
As Mrs. Turner sat in the Beer Garden, a foul ball struck her in the face. The force of the ball’s impact rendered her unconscious, broke her nose, and lacerated her face. According to Mrs. Turner, she never saw the ball coming and had no opportunity to get out of the way.
The Turners subsequently filed a complaint in district court against the Las Vegas 51s, alleging three causes of action: negligence, loss of consortium, and negligent infliction of emotional distress (NIED). While the negligence action pertained to Mrs. Turner’s alleged injuries, the loss of consortium and NIED claims pertained to Mr. Turner’s alleged injuries.
In response to the Turners’ complaint, the 51s filed a motion for summary judgment, which the Turners opposed. After considering the parties’ arguments, the district court granted the 51s’ motion, concluding that the team “did not breach any duty of care to Plaintiffs to protect them from harm [and] . . . even if there were any such duty, the [foul] ball [was] a known and obvious risk.” This appeal followed.
DISCUSSION
On appeal, the Turners argue that their claims for negligence, loss of consortium, and NIED each present a genuine issue of material fact. We disagree.
Standard of review
This court reviews orders granting summary judgment de novo.
Mrs. Turner’s negligence claim
The district court concluded that Mrs. Turner’s negligence claim failed because the Las Vegas 51s did not owe a duty to protect her from the foul ball in question. For the following reasons, we agree with the district court’s conclusion.
A claim for negligence in Nevada requires that the plaintiff satisfy four elements: (1) an existing duty of care, (2) breach, (3) legal causation, and (4) damages.
In addressing this issue, at least 12 jurisdictions have adopted the “limited duty rule,” which places two important requirements on stadium owners and operators.
As explained by the Michigan Court of Appeals, “the limited duty rule . . . identifies the duty of baseball stadium proprietors with greater specificity than the usual . . . standard provides.”
By defining the duty of a baseball stadium owner or operator with specificity, the limited duty rule shields the stadium owner or operator from the need to take precautions that are clearly unreasonable while also establishing the outer limits of liability.
Recognizing the importance of establishing parameters around personal injury litigation stemming from professional baseball in Nevada, we take this opportunity to expressly adopt the limited duty rule. As stated above, the limited duty rule establishes the to
In this case, Mrs. Turner was injured while eating in the Beer Garden, a concessions area located several hundred feet from home plate on the top viewing level of Cashman Field. Because Mrs. Turner chose not to sit in a protected seating area, the relevant inquiry under the limited duty rule is whether the Beer Garden was one of the most dangerous areas of the ballpark or, more specifically, whether it posed “an unduly high risk of injury” from foul balls.
Here, the record establishes that foul balls occasionally fly into the Beer Garden, some parts of which have an obstructed view of the field. The risk of an occasional foul ball, however, does not amount to “an unduly high risk of injury.” Indeed, Mrs. Turner has conspicuously failed to demonstrate that any other spectator suffered injuries as a result of errant balls landing in the Beer Garden. Thus, we conclude that she failed to establish a genuine issue of material fact as to the 51s’ negligence, and the 51s were entitled to judgment as a matter of law.
Clarification of Mizushima v. Sunset Ranch and the implied assumption of risk doctrine
Separately, since the limited duty rule is logically related to the broader doctrine of primary implied assumption of risk,
The implied assumption of risk doctrine generally is divided into two subcategories: “primary” and “secondary.”
In Mizushima, this court described the doctrine of primary implied assumption of risk as “a relationship voluntarily accepted with an imputed understanding that the other party has no duty to the injured plaintiff.”
We have clearly and consistently stated — since at least 2001— that whether a duty exists is actually a question of law to be de
Mr. Turner’s loss of consortium and NIED claims
Because we affirm the district court’s summary judgment on Mrs. Turner’s negligence action, we also affirm its summary judg
CONCLUSION
Since the record demonstrates that the 51s satisfied the requirements of the limited duty rule as a matter of law, and thus no genuine issue of material fact remains with regard to Mrs. Turner’s negligence claim, we conclude that the district court was correct to enter summary judgment in the 51s’ favor on that claim. We further conclude that the district court properly entered summary judgment on Mr. Turner’s claims for loss of consortium and NIED. Accordingly, we affirm the district court’s order in all respects.
Specifically, this notice provides that the “Holder assumes all danger incidental to the game whether occurring before, during or after the game, including the dangers of being injured by thrown bats or thrown or batted balls, and agrees that the TEAMS, their agents, and players are not liable for resulting injuries.”
Two other concession areas at Cashman Field provide protection from stray balls: (1) the Party Zone, which has a protective screen; and (2) the Club Level Restaurant, which is fully enclosed by clear glass walls.
Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
Id.
Id. at 731, 121 P.3d at 1031.
Jordan v. State, Dep’t of Motor Vehicles, 121 Nev. 44, 74, 110 P.3d 30, 51 (2005).
Hall v. SSF, Inc., 112 Nev. 1384, 1393, 930 P.2d 94, 99 (1996). This court considered a similar issue on appeal from a judgment following a bench trial in Berrum v. Powalisz, 73 Nev. 291, 317 P.2d 1090 (1957), where the plaintiff was struck by the end of a bat that flew through an opening in the protective screening behind home plate. There, the court framed the issue presented as one of “proximate cause” — specifically, “whether the hazard which resulted in the injury was one for which the defendants should have provided protection” or, “more narrowly, whether the minds of reasonable men could differ as to the foreseeability of the occurrence.” Id. at 292, 317 P.2d at 1091. The Berrum court affirmed the district court’s judgment in favor of the plaintiff, concluding that under the facts presented, “a reasonable man might well believe that [the flying bat] . . . was reasonably to be anticipated as a hazard.” Id. at 294, 317 P.2d at 1092. In affirming the district court’s judgment, this court explained that the plaintiff was “entitled to rely upon the feet that [the protective screen was] . . . provided for her safety and [she was not] . . . contributorily negligent in failing to check” its functionality. Id. at 295, 317 P.2d at 1093. Because Berrum was decided before the enactment of Nevada’s comparative negligence statute, however, and it did not thoroughly consider the issue of “duty,” it provides little guidance here.
See James L. Rigelhaupt, Jr., Annotation, Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979) (electronically updated as of 2008).
Schneider v. American Hockey, 777 A.2d 380, 384 (N.J. Super. Ct. App. Div. 2001) (internal quotation marks and citation omitted).
Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 223 (2001).
Cf. Harrington v. Syufy Enters., 113 Nev. 246, 249, 931 P.2d 1378, 1380 (1997) (recognizing that recovery is barred under a duty to warn theory “when the danger is obvious, not because the negligence of the plaintiff is greater than that of the defendant, but because the defendant is not negligent at all.”).
Benejam, 635 N.W.2d at 223.
Schneider v. American Hockey, 777 A.2d 380, 384 (2001).
See Butler v. Bayer, 123 Nev. 450, 461, 168 P.3d 1055, 1063 (2007) (establishing that summary judgment is appropriate in a negligence action where no duty exists). The dissent reasons that summary judgment is inappropriate because the limited duty rule does not extend to areas outside of the stands, such as the Beer Garden. In reaching this determination, the dissent applies the limited duty rule to the stands but then concludes that traditional negligence principles apply to other areas of the ballpark. In doing so, the dissent creates a “shifting or moveable duty of care,” which is triggered by the plaintiff’s unilateral and volitional decision to move between parts of the stadium. Maisonave v. Newark Bears, 881 A.2d 700, 716 (N.J. 2005) (Rivera-Soto, J., concurring in part and dissenting in part). In our view, the defendant’s duty should not change at the plaintiff’s impulse, and only one duty of care should apply with respect to the general “peril of objects leaving the playing field.” Id. at 717. Following this approach, the 51s satisfied the applicable duty of care by providing sufficient protected seating under the limited duty rule; thus, the district court properly entered summary judgment in the 51s’ favor.
See Maisonave, 881 A.2d at 704-05 (“Even a brief review of several early baseball cases reveals that many courts that adopted the [limited duty] rule, or a version of it, based their decisions on two facts: that the danger of errant
103 Nev. 259, 737 P.2d 1158 (1987).
Davenport v. Cotton Hope Plantation, 508 S.E.2d 565, 569-71 (S.C. 1998); cf. Mizushima, 103 Nev. at 262, 737 P.2d at 1160.
See Davenport, 508 S.E.2d at 571 (recognizing that “secondary” implied assumption of risk arises where “the plaintiff knowingly encounters a risk created by the defendant’s negligence”).
103 Nev. at 264 n.7, 737 P.2d at 1161 n.7 (emphasis added). Notably, the Mizushima court used the example of a foul ball hit into the stands as an example of this principle. Id.
Lee v. GNLV Corp., 117 Nev. 291, 295, 22 P.3d 209, 212 (2001); see Butler v. Bayer, 123 Nev. 450, 461, 168 P.3d 1055, 1063 (2007) (“Because the existence of ‘duty’ is a question of law, if this court determines that no duty exists, it will affirm summary judgment for the defendant in a case involving negligence.”).
Davenport, 508 S.E.2d at 570; See Foronda v. Hawaii Intern. Boxing Club, 25 P.3d 826, 836 (Haw. Ct. App. 2001) (“There being no legal duty to breach, there can be no talk of negligence, . . . and thus, primary implied assumption of risk remains a discrete and complete defense quite apart from comparative negligence.”); Armstrong v. Mailand, 284 N.W.2d 343, 348 (Minn. 1979) (“primary assumption of the risk remains as an absolute bar to the plaintiff’s recovery, whereas secondary assumption of the risk becomes a question of comparative negligence”).
See Davenport, 508 S.E.2d at 570; Armstrong, 284 N.W.2d at 348 (“[p]rimary assumption of the risk is not really an affirmative defense; rather, it indicates that the defendant did not even owe the plaintiff any duty of care”).
See Davenport, 508 S.E.2d at 571 (noting that “express and primary implied assumption of risk are compatible with comparative negligence”).
We also overrule Mizushima to the extent that it treated the determination of duty in negligence cases as a factor left to the jury in the comparative negligence analysis. 103 Nev. at 264 n.7, 737 P.2d at 1161 n.7. As we reiterated in Lee v. GNLV Corp., “the question of whether a ‘duty’ . . . exists is a question of law solely to be determined by the court.” 117 Nev. at 295, 22 P.3d at 212. To this end, a court must first decide that a duty exists before a jury can decide “[w]hether the defendant has failed to act reasonably in the particular circumstances.” Auckenthaler v. Grundmeyer, 110 Nev. 682, 688, 877 P.2d 1039, 1043 (1994).
Cf. Gunlock v. New Frontier Hotel, 78 Nev. 182, 185 n.1, 370 P.2d 682, 684 n.1 (1962) (concluding that appellant’s claim for loss of consortium “was dependent upon the success of his wife’s claim . . . [and] [h]er claim not having been established, his must fail as well”).
See Moon v. Guardian Postacute Services, Inc., 116 Cal. Rptr. 2d 218, 220-21 (Ct. App. 2002) (explaining that “NIED is a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages”).
Concurring in Part
concurring in part and dissenting in part:
I concur with the majority that the district court properly granted summary judgment upon the claim for negligent infliction of emotional distress.
Since Mrs. Turner was sitting in the Beer Garden and not in the stands at the time of her injury, the limited duty rule should not apply. As the New Jersey Supreme Court recognized, to apply the limited duty rule ‘ ‘to [an] entire stadium would convert reasonable protection for owners to immunity by virtually eliminating their liability for foreseeable, preventable injuries to their patrons even when the fans are no longer engaged with the game.”
The determinative issue under a general duty analysis is “whether ‘such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other.’ ”
While the majority concludes that the district court properly dismissed Mr. Turner’s negligent infliction of emotional distress claim because the 51s satisfied their legal duty as a matter of law, I conclude that summary judgment was proper because the TUrners failed to present evidence that Mr. Turner suffers “ ‘serious emotional distress’ causing physical injury or illness.” Barmettler v. Reno Air, Inc., 114 Nev. 441, 448, 956 P.2d 1382, 1387 (1998).
See Davenport v. Cotton Hope Plantation, 508 S.E.2d 565, 570 (S.C. 1998) (recognizing that the primary implied assumption of risk doctrine “goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff”).
103 Nev. 259, 737 P.2d 1158 (1987).
Maisonave v. Newark Bears, 881 A.2d 700, 709 (2005).
Auckenthaler v. Grundmeyer, 110 Nev. 682, 687-88, 877 P.2d 1039, 1042-43 (1994).
See Harrington v. Syufy Enters., 113 Nev. 246, 250-51, 931 P.2d 1378, 1381 (1997) (concluding that appellant presented a material issue of fact regarding whether a danger was “obvious”).
See id. at 249-50, 931 P.2d at 1380-81 (noting that the obvious danger rule survived the enactment of Nevada’s comparative negligence statute).
Lee v. GNLV Corp., 117 Nev. 291, 295, 22 P.3d 209, 212 (2001) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 37, at 236 (5th ed. 1984)).
Hall v. SSF, Inc., 112 Nev. 1384, 1393, 930 P.2d 94, 99 (1996).
I note, as the majority does in note 2, that the 51s provided protection from stray balls in two other concession areas.
Cf. Gunlock v. New Frontier Hotel, 78 Nev. 182, 185 n.1, 370 P.2d 682, 684 n.1 (1962) (concluding that appellant’s claim for loss of consortium “was dependent upon the success of his wife’s claim . . . [and] [h]er claim not having been established, his must fail as well”).
Reference
- Full Case Name
- KATHLEEN TURNER and MICHAEL TURNER, Appellants, v. MANDALAY SPORTS ENTERTAINMENT, LLC, Dba LAS VEGAS 51S, Respondent
- Cited By
- 85 cases
- Status
- Published